Following last year’s revival of the collegium system of judicial appointments by the Supreme Court’s constitution bench, which quashed the National Judicial Appointments Commission (NJAC) last year, the government is all set to revise the existing Memorandum of Procedure for appointment of judges of the Supreme Court and high courts, as suggested by the same bench.

But even as this exercise is under way, a rather curious case of an additional judge of the Orissa high court, who failed to be confirmed as a permanent judge of the same high court due to the vagaries of the collegium system around 2010, is now before a Supreme Court’s three-judge bench.

The bench, comprising of justices Ranjan Gogoi, Arun Mishra and Prafulla C Pant, on 14 March began hearing the SLP filed by Lalit Kumar Mishra, the former Additional Judge.

Mishra’s case is rather curious, and it is indeed surprising that his case was not brought to the notice of the constitution bench that heard the NJAC matter last year.

Mishra was appointed as additional judge of the Orissa high court for a period of two years from 17 January 2008, and after completion of two years, he was not made permanent judge.

Mishra’s other grievance was that he was unjustly reverted to the cadre of district judge from 17 January 2010, and was subsequently compulsorily retired from service.

His name was first recommended by the high court collegium for appointment as permanent judge to the Supreme Court collegium, before his term as additional judge came to an end.

Even as the Supreme Court’s collegium was about to consider this recommendation, the high court collegium formally withdrew its recommendation, by writing to the then Chief Justice of India, KG Balakrishnan, on the ground that an allegation that he manipulated marks stood proved.

As a result of this, according to Justice Gogoi, who had gone through Mishra’s appointment file, the Supreme Court collegium did not recommend his name to the government.

Mishra’s counsel, Raj Kumar Mehta, argued that the CJI, in his individual capacity, should not have decided not to appoint Mishra as a permanent Judge, as the supremacy of the collegium overrode the individual opinion of the CJI

Mehta further argued that non-appointment of a person recommended as a judge must be based on reasons and these reasons ought to have been shared with Mishra by the then CJI

Mehta submitted that the CJI’s consultation with other members of the collegium, in order to be effective, must have been in writing, as per the Supreme Court’s judgment in the Second Judges case, and therefore, whatever the reasons for non-appointment of Mishra must have been communicated by the then CJI to the other members of the collegium.

The implication, according to Mehta, was that as the Chief Justice Balakrishnan did not consult the collegium, while deciding not to appoint / recommend Mishra, his decision was vitiated.

Assailing Balakrishnan’s decision not to appoint Mishra as a permanent judge, Mehta submitted that Mishra’s response to the allegations against him must have been sought by the then collegium, and by not doing so, it deprived Mishra’s right to be considered for the post of the permanent Judge.

Mehta further contended that even after non-appointment as a permanent judge, Mishra could not have been reverted to district judge, because he was not on probation.

Mishra had the right to be considered and confirmed as a high court judge by the plurality of the Supreme Court’s collegium, and not by the CJI alone, in his individual capacity, he submitted.

When Mehta submitted that even the Supreme Court’s collegium had recommended Mishra’s name to the government, before reversing his choice, the bench corrected him, and claimed that the facts suggest that the Supreme Court’s collegium did not recommend his name.

Justice Gogoi then narrated the sequence of facts as found in the appointment file.

The question that arises is whether the then chief justice Balakrishnan wrote to the law ministry with enclosures carrying the high court collegium’s decision to recall the recommendation to appoint Mishra, in his individual capacity, without consulting the Supreme Court’s collegium.

The then CJI never placed it (the recommendation to not appoint Mishra) to the Supreme Court’s collegium, even though right of consideration by the SC collegium is the vested interest of Mishra, Mehta argued.

Mehta also submitted that the Supreme Court’s nine-judge bench, in the Second Judges case, out of deference to the CJI, said that he ‘may’ share the reasons for non-appointment with the person who was recommended by the high court collegium. The word ‘may’ used here out of deference to the CJI, must be understood as ‘shall’ he contended.

When Mehta complained to the bench that he did not get access to Mishra’s appointment file, the bench asked the Additional Solicitor General, Maninder Singh, and the court Master to make the file available for perusal within the court premises to Mehta, after the hearing, and put the file again in a sealed cover, to be reopened on the next day of hearing.

The hearing will continue on Monday in two weeks.

Readers may read the Orissa high court’s judgment in the matter, which is under appeal before the Supreme Court, below: